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Wednesday, August 29, 2012

This is the fourth entry in my ongoing series on the paradox of blackmail. The “paradox” refers to the fact that blackmail is criminalised despite involving otherwise lawful acts: (i) threatening to do something one is lawfully entitled to do; and (ii) receiving a benefit/gain for refraining from doing what one is lawfully entitled to do. The key question for this series is whether there is any good reason for thinking that these two acts, when combined, merit criminal sanction.

So far, we’ve surveyed a variety of theories. In part one, we looked at Epstein’s argument in his article “Blackmail Inc’. This argument held that blackmail was justifiably criminalised because its legalisation would promote fraud and other forms of criminality. In part two, we looked at Lindgren’s (arguably decisive) objections to Epstein’s argument. We followed this up in part three by surveying and critiquing seven separate theories of blackmail (each one trying to justify its criminalisation).

In this post we will look at Lindgren’s own theory of blackmail, which explains the wrongness of blackmail by appealing to its tripartite structure. So first off, we’ll set out this tripartite structure and try to explain how Lindgren derives the wrongness of blackmail from this structure. Then, we’ll look at some criticisms of this argument. And finally, we’ll consider the possibility that this entire series of posts is based on a false premise.

1. Lindgren on the Wrongness of Blackmail
Every case of blackmail, according to Lindgren, has a tripartite structure. It involves a network of relationships between three distinct persons (or groups of persons). We’ll use the typical information disclosure case of blackmail to illustrate this structure.

The first person in the informational disclosure blackmail is, of course, the blackmailer. This is the person who has discovered the information and is threatening to disclose it unless they are given some benefit. The second person is the victim. This is the person who would be damaged if the information were revealed and, consequently, prefers that it is not. And the third person is, quite simply, the “third party”. This is the person from whom the information is being concealed and to whom the information could be disclosed. They are the person who is being “kept in the dark” by the existing state of affairs.

The people in the information disclosure case are connected to one another in distinctive ways. The blackmailer and the victim are connected via a conditional threat and potential gain: “unless you do X for me, I will disclose the information to the third party”. The blackmailer and the third party are potentially connected to one another via the disclosure of information. And the victim and third party are connected to one another via some existing relationship. In this relationship the victim is gaining something from the third party through the non-disclosure of information. This could be a reputational or other advantage, as, for instance, in the case of the adulterous spouse who maintains marital stability by not disclosing information about their affair to their husband or wife.

The tripartite structure of the informational disclosure case is diagrammed below.

Click to enlarge

Now, Lindgren thinks that the wrongness of blackmail emerges from a close analysis of this tripartite structure. How so? His reasoning is as follows: if you look closely, you see that in the information disclosure case, the blackmailer profits from suppressing someone else’s actual or potential interest. For example, in the case of the adulterous spouse, the partner who is kept in the dark has an interest in learning about the adulterous affair, but the blackmailer suppresses this interest by entering into a bargain with the victim. They thereby trespass on the rights of that third party.

This is what makes blackmail wrong and thus worthy of criminalisation. In other words, Lindgren offers the following argument:

(1) It is wrong to gain by suppressing the right/interest of another.

(2) The blackmailer gains by suppressing the right/interest of the third party.

(3) Therefore, blackmail is wrong.

Lindgren argues that the truth of premise (1) becomes more apparent when we consider non-informational cases of blackmail. Consider, for instance, the trade union leader who threatens to call a strike against an employer unless the employer pays him off personally. In this scenario, the trade unionist is gaining by suppressing the rights of the union members, which seems wrong and hence worthy of criminalisation.

(Quick note: it’s probably worth being aware that the wrongness of something, by itself, may not be sufficient for criminalisation. That’s something many theorists have argued about, however, it’s not a debate I want to get into directly in this post.)

2. Problems with Lindgren’s Argument
Lindgren’s argument looks pretty appealing. I certainly agree that there is something unsavoury about bargaining with the rights and interests of others, but is this really what is going on in the case of blackmail? I answer that by first offering a brief digression.

The libertarian legal scholar Walter Block is probably the most indefatigable defender of the view that blackmail should be legalised. If you don’t believe me, check out his website (scroll down to section marked "Blackmail") which includes links to nearly everything he has written on the topic. Any discussion of the paradox of blackmail has to mention his work sooner or later, and given that he has written explicit replies to every pro-criminalisation argument out there (including Lindgren’s), now looks to be an opportune moment to bring him into the discussion.

Block’s main criticism of Lindgren is, ironically enough, practically identical to a criticism that Lindgren made of Epstein. It has to do with the characterisation of blackmail in premise (2). The problem with this characterisation is that in many information disclosure cases, the third party does not have a legally or morally recognised right/interest to the information in question. So the blackmailer does not wrongfully suppress a right or interest when making their demand.

Consider, for instance, the spouse who is kept in the dark. Certainly, they may benefit knowing about the adulterous affair (then again, they may not) but in no sense are the legally entitled to know. Similarly, and probably more emphatically, in the case of homosexual blackmail — where the blackmailer threatens to disclose information about someone’s sexual orientation to their employer — there is no sense, legally or morally, in which the employer is entitled to that information. They may like to know, but that is a different matter.

As I said, it is somewhat ironic that this criticism can be made given Lindgren’s recognition of this point in his critique of Epstein. There, Lindgren noted that Epstein’s argument rested on the false premise that at the heart of every information disclosure case was a victim who was engaged in a disreputable form of fraud against a third party. This was false because, as Lindgren argued, there were many putative blackmail cases in which the victim was perfectly within their rights to conceal the information. But if this is true, it has knock-on effects on Lindgren’s own argument: if the victim has the right to conceal the information, the third party cannot have the right to have it revealed.

To put it another way, Lindgren has failed to address the paradox of blackmail because he has assumed that one of the apparently legal acts (the suppression of the information) wrongful. But it is not, as he himself has said.

3. Is there a paradox of blackmail?
So far we’ve looked at nine different theories of blackmail, each one purporting to explain why blackmail can be justifiably criminalised despite the fact it involves the combination of two otherwise lawful acts, and each one seemingly vulnerable to a number of counterarguments. The fact that each of the theories seems to have major failings is wont to prompt reconsideration of the entire quest.

Two possibilities seem to emerge from this reconsideration. The first is that maybe blackmail should not be criminalised, as Block would have us believe. The second is that maybe there is no paradox here, maybe we started this series with a faulty assumption. I’ll look at the first of those possibilities in the final entry in this series, which will be the next one. I’ll close out this entry by looking briefly at the second.

In doing so, I take my lead from the short and simple article called “There is no Paradox of Blackmail” by Michael Clark. In it, Clark tries to deflate the notion of a paradox of blackmail. He does so by initially observing that there is nothing particularly special or problematic with the notion that two otherwise lawful acts, when combined, become unlawful. To quote:

It is not in itself illegal to be drunk nor is it illegal to be in charge of a motor car, but it is illegal to be drunk in charge of a car. It is not illegal for a man to have consensual sexual intercourse with his wife nor is it illegal for them to be seen together in a crowded public park, but it is illegal for them to be seen together having sexual intercourse in a crowded public park. John, an adult bachelor, may legally go through a form of marriage next month with the adult unmarried Jane while Mary is still alive, and he may legally go through a form of marriage next month with the adult unmarried Mary while Jane is still alive, whereas he could be guilty of bigamy if he did both. (p. 55)

These analogies are arresting, and go some way toward deflating the paradox of blackmail, but one is left somewhat in the dark as to how exactly they support the criminalisation of blackmail since there are, presumably, counter-analogies too, i.e. cases in which two lawful acts are combined and remain lawful. Clark adds another deflationary argument that might shed some light on this. He argues that the mistake made by the paradox-mongers is to view blackmail as a combination of two lawful acts when in reality it is a distinctive act in itself. It is a demand backed by a threat, not simply a demand and a threat. The claim then is that when one focuses on the distinctive kind of act that blackmail is, one will see more clearly what is wrong with it.

But is that right? The fifth and final entry in this series will look at that question.

Tuesday, August 28, 2012

This post is the second in a brief series looking at the topic of incest. Now, if ever there were a topic that was apt to appeal to the “yuck”-factor in ethics, this is it. But this series is trying to set aside this instinctive feeling of disgust and take a sober look at the arguments typically offered in favour of criminalising incestuous relationships. To this end, I’m making heavy use of Vera Bergelson’s article “Vice is Nice but Incest is Best” which examines five traditional rationales for criminalisation.

In part one, I did two things. First, I set out the basic contours of the debate, defining “decriminalisation” as the removal of punitive sanction from an activity or set of activities, and “criminalisation” as the application of punitive sanction. I noted that, under these definitions, it was possible to argue for the decriminalisation of incest, without thereby arguing for its social acceptability or encouragement. Still, I recognised that there might be some slippery slope arguments to the contrary. I also distinguished between paradigmatic (sibling-sibling/parent-child) and non-paradigmatic (e.g. uncle-niece) cases of incest, arguing that the former were probably more testing than the latter. Nevertheless, I noted that most incest statutes cover non-paradigmatic cases, as well as paradigmatic ones, and so any analysis of the decriminalisation of incest must bear them in mind too.

The second thing I did in part one was to examine two arguments that allegedly support the criminalisation of incest. They were the argument from religious authority and the argument from universal tradition. Both arguments were found to be somewhat lacking, offering at best explanations for why incest has been criminalised, not justifications for its criminalisation.

In today’s post, I look at two rather more significant pro-criminalisation arguments. The first, and probably most significant, is the argument from genetic defectiveness. The second is the argument from the protection of the family unit. Both have some secular appeal, but both are problematic. As we shall see.

1. The Argument from Genetic Defectiveness
That the offspring generated by incestuous procreation have an increased risk of carrying genetic defects, is often cited as a reason against them. The claim can be supported with some simple Mendelian principles. As anyone who has taken a basic intro to biology course will know, the human genotype is made up of chromosomal pairings of genes. One half taken from one parent, the other half taken from the other parent. The phenotypical expression of a trait depends on which pairings one has, specifically whether the pairings consist of dominant or recessive genes and in what mix.

Take a simple trait like eye colour. Brown eye colour is a dominant trait (the gene for this will be denoted by “B”); blue eye colour is recessive (the gene for will be denoted with a “b”). The vagaries of phenotypic expression are such that if there is at least one brown eye gene present in your inherited pairings (i.e. if you have BB, bB, or Bb pairings), you will have brown eyes. Only if you have two of the blue eye genes (i.e. bb) will you have blue eyes. So if your parents are both have the BB genotype, you will definitely have brown eyes; if they both have the Bb genotype, there is a one in four chance that you will have blue eyes; and if they both have the bb genotype, you will definitely have blue eyes.

Most recessive genetic traits are benign — like having blue eyes, which might arguably be an advantage — but some are not. These we call deleterious recessive traits. The problem with incestuous procreation is that it increases the probability of recessive traits being expressed in the offspring, because its more likely that the parents have heterozygous (dominant-recessive) or homozygous (recessive-recessive) gene pairings. If these recessive traits are deleterious, this could have seriously harmful consequences for the resultant offspring. And so there is good reason to criminalise incest. Or so the argument goes.

We can put it like this:

(1) If activity X is likely to lead to the creation of genetically defective offspring, X should be criminalised.

(2) Incest is likely to lead to the creation of genetically defective offspring.

(3) Therefore, incest should be criminalised.

One general comment about this argument is in order. The principle — premise (1) — is expressed in a somewhat unnatural way. In particular, references to some variable “activity X” seem odd given that there is really only one type of activity in mind when we think of creating offspring. However, there is a reason for the somewhat unnatural construction, and it should become clear as we move on to evaluate the argument, which is what we are now going to do.

2. Evaluating the Argument from Genetic Defectiveness
Superficially, the argument from genetic defectiveness has some appeal. The principle can be supported by typical harm avoidance grounds that are popular in criminalisation debates. It is generally thought that an activity that harms others can be justifiably criminalised. Arguably, genetically defective offspring are harmed by their defects, so the activities that lead to their creation can be prohibited on the basis that they are harmful.

As I say, this has some superficial appeal, but on closer inspection the principle here seems dubious, highly dubious. As Bergelson points out, there are many other sexual unions that are likely to lead to genetically defective offspring, but which we wouldn’t dream of subjecting to criminal sanction. The language of “defectiveness” is going to be inflammatory here, so let’s be clear that by this we mean a recessive trait that when expressed is thought to disable or impair one of the major life functions. Examples of sexual unions that are likely to lead to such offspring, but which we wouldn’t dream of criminalising include those between deaf-mute and dwarf partnerships (the latter being possibly controversial). Further, if this principle were correct, given modern gene sequencing technologies, we should probably demand genetic screening of all procreative partnerships and ban those most likely to lead to defective offspring. But that would seem to be an unpleasant notion, far too close to early 20th century eugenics for comfort. So premise (1) looks doubtful. Since I’m going to construct an map for this particular argument I’ll summarise this line of reasoning in a numbered premise:

(4) There are many sexual unions that are likely to lead to genetically “defective” offspring that are not apt for criminalisation.

So much for premise (1), what about premise (2)? Evaluating this premise is where the ambiguity of the phrase “activity X” comes into play. To claim that incest is likely to lead to genetically defective offspring is to trade on the vague nature of the term “incest”. It is really only uncontracepted vaginal intercourse that is covered by premise (1); and yet “incest” could involve other activities which are disconnected from procreation. As noted in part one, English law on incest bans all penetrative sexual acts between a certain class of relatives, which includes non-procreative acts. Other laws in other countries cover non-penetrative acts and marriage, none of which are inclined to lead to procreation. So premise (2) is false if the term “incest” is understood in its broadest sense.

(5) The term “incest” covers non-procreative acts as well as procreative ones. Under the logic of this argument, the non-procreative activities should be decriminalised.

But even if the argument is corrected, and “incest” is understood in the narrower sense, there is some doubt as to the truth of premise (2). Bergelson claims (without supporting the claim) that the number of defects associated with inbreeding is relatively low. Make of that what you will; I’m in no position to evaluate it properly. She also adopts an interesting argument made by Carolyn Bratt in the mid-1980s which claimed that banning incestuous procreation might actually exacerbate the problem of deleterious recessive traits.

Bratt’s reasoning was that if a recessive trait is sufficiently deleterious, then it is more likely to be filtered out of the population if we allow incestuous procreation than if we don’t. Sufficiently deleterious traits are likely to lead to death or infertility when expressed in homozygous individuals. But homozygous individuals are more likely to result from incestuous unions. In a sense then, the deleterious genetic line is more likely to come to an end through an incestuous union. So far the argument follows the logic of the pro-criminalisation one. The difference comes in the next step. If incestuous unions are banned, then the recessive trait in question is more likely to disperse through the population. This would be thanks to the creation of more and more heterozygous progeny, all carrying the recessive trait but not expressing it. But if there are more and more heterozygous people carrying the trait, then the risk of future homozygous progeny goes up. Thus, although banning incestuous procreation may prevent harm to the next generation, it creates downstream problems.

(6) Bergelson’s claim: there are relatively few serious defects associated with inbreeding.

(7) Bratt’s argument: banning incestuous procreation may lead to the more widespread dispersal of deleterious recessive traits through the population.

Now, I’m somewhat unconvinced by Bratt’s argument. This is for two reasons. The first is that incestuous procreation is not going to be the norm even if it is decriminalised (for deep-seated psychological reasons), so the reduced-dispersion effect that Bratt alludes to is unlikely to be that significant. The second is that there is a dubious consequentialist logic to this argument. It suggests it might be okay to sacrifice one generation in the interests of other future generations. But these kinds of population-based, future generations arguments can lead to repugnant conclusions, as many others have pointed out. Still, the argument may succeed in making us realise that considerations of genetic defectiveness are more complex than we first realised and that may be sufficient to lessen the appeal of the argument from genetic defectiveness.

Click to enlarge

3. The Argument from Family Protection
A different argument for the criminalisation of incest derives from the value of familial stability. The reasoning is fairly elementary. The family unit (in its so-called “nuclear” form) is an important social institution, both for the role it plays in perpetuating society and for the role it plays in the socialisation and education of children. Anything that would damage the stability of the family unit would be bad. Incestuous relationships would destabilise the family unit either because they would lead to sexual jealousies and rivalries in the family, or because they would undermine parental role models that prepare the young for the future assumption of familial responsibilities.

To state this argument more formally:

(8) If an activity would damage the stability of the family unit, it ought to be criminalised.

(9) Incest would damage the stability of the family unit.

(9.1) Incest would lead to sexual jealousies and rivalries within the family.

(9.2) Incest would undermine good parental role models.

(10) Therefore, incest ought to be criminalised.

Interestingly enough, as Bergelson points out, this argument was thought to provide the most persuasive reason for criminalising incest by the drafters of the Model Penal Code, which is a model set of criminal laws that has been influential in shaping the content of the criminal statutes in many US states. But despite garnering the imprimatur of the MPC, the argument is surprisingly weak.

The first issue is that the principle — premise (8) — is too broad. Are we really saying that everything that damages the stability of the family unit ought to be criminalised? Perhaps conservatives think so, but this would include a surprisingly long list of activities. Even if we limit ourselves to just the forms of jealousy that might undermine familial stability, we might find reason to criminalise activities other than incest. Siblings often compete with each other for affection and attention within the family, and for accolades outside. Oftentimes, these competitions can become bitter and all-consuming. Should we try to ban those too? It seems implausible to suggest that we should, yet this is what the principle demands.

The factual claim — premise (9) — is also problematic. Bergelson argues that there are at least some types of incestuous relationship that would not create sexual jealousies and rivalries. For instance, sister-sister and mother-daughter relationships are unlikely to create sexual rivalries. Also, many famous incest cases involve siblings who were raised in separate families, reunited as adults, and began an incestuous relationship that followed the typical nuclear family form. Should they not be permitted since they do not lead to the destabilising effects mentioned?

Okay, I’ll leave it there for now. In the next post we’ll look at two more arguments. One of which claims that incest bans help to prevent intra-familial abuse, the other of which claims that the law should enforce moral taboos.

Monday, August 27, 2012

This series of posts is looking at the paradox of blackmail. The paradox can be neatly summed up as follows. Blackmail consists of two acts: (i) a lawful threat to do something (e.g. release information) and (ii) the receipt of money or other favour for refraining from carrying out the threat. Both acts would be innocent in themselves, but when combined in the form of a conditional demand (Unless you….I will…) they become criminal. Why is this?

So far, we’ve looked at one answer to this question. In part one, we looked at Richard Epstein’s argument in favour of criminalising blackmail. The argument hinged on a thought experiment involving a hypothetical company called Blackmail Inc., that would be established whenever blackmail was legalised. This company was imagined to encourage fraud and deceit on such a large scale that the criminalised of blackmail seemed justified. This argument was challenged in part two when we looked at James Lindgren’s critique of Epstein’s work.

But the discussion in part two didn’t give Lindgren his due. For in addition to his critique of Epstein, Lindgren analyses and critiques seven other theories of blackmail, before offering a theory of his own. In today’s post, we’ll cover those seven theories and Lindgren’s critiques. While most of this information for this post is contained in Lindgren’s article on Epstein (“More Blackmail Ink”), it is presented in expanded form in his article “Unraveling the Paradox of Blackmail”. So I’ve drawn from that too in the following discussion. I was going to look at Lindgren’s own theory of blackmail in this post as well, but since the post was getting quite long I decided to postpone that until the next day. It probably deserves a more careful treatment anyway.

The seven theories critiqued by Lindgren, date all the way from the mid-1930s up to the mid-1980s (when Lindgren’s article was written). This gives a good sense of just how long legal theorists have been gnawing on this particular philosophical puzzle, and the diversity of their responses. Obviously, given constraints of time, space and patience, the summary of the seven theories I’m about to give is extremely perfunctory. I’ll go through each theory in sequence, giving a quick synopsis of its essential elements first, and following up with an overview of Lindgren’s criticisms. I'll add some critical comments of my own along the way.

1 - Goodhart’s Theory
The first theory supporting the criminalisation of blackmail comes from the work of Arthur Goodhart, a mildly notorious professor of jurisprudence at Oxford in the first half of the 20th Century. Goodhart’s theory hinged on the distinction between moral and immoral liberties. Roughly as follows:

Moral Liberty: Something that we are legally free to do and which is generally agreed to be a good thing, e.g. giving money to charity.

Immoral Liberty: Something that we are legally free to do but which is not generally agreed to be a good thing, e.g. giving all your money to a fascist political party.

Goodhart’s claim was that blackmail involved someone taking an immoral liberty — i.e. threatening to do something that was lawful but generally not approved of — hence it was okay to criminalise it. Particularly when someone was trying to make money out of it through a conditional demand.

There is something interesting about the moral/immoral liberty distinction, though it is redolent of the puritanical and quaintly paternalistic timbre of British legal discourse in the early to mid 20th century. But nothing in that distinction can justify the criminalisation of blackmail. Certainly not in its present form, since that seems to outlaw cases involving moral as well as immoral liberties. For example, disclosing somebody’s adulterous relationship to their partner might be thought a morally acceptable thing to do (perhaps even obligatory), but it is still blackmail under the law if one demands payment to refrain from doing it. Goodhart’s theory would require a systematic reframing of blackmail laws, and a careful delineation of moral and immoral liberties, in order to be successful. Neither of which seem to have been forthcoming.

I must admit, I find Lindgren’s criticism somewhat misleading here since in the blackmail case what is problematic is that a moral liberty is not being taken — one receives payment for refraining from taking it — not that one is. Arguably, it could be legitimate to criminalise the refraining from taking the liberty, since what we actually want to do is encourage people to take the liberty. A far more persuasive criticism, in my opinion, would target the moral/immoral liberty distinction and argue that it does not apply, that legal systems cannot make those kinds of distinctions when they remove legal sanction from an activity.

2 - Atkin’s Theory
The second theory comes from a judgment written by Lord Atkin. He was a British judge most famous for his articulation of the “neighbour” principle, which formed the backbone of modern personal injuries law. The judgment in question is Thorne vs. Motor Trade Association. In it, Atkin proposes that blackmail is committed whenever one demands money in such a way that it damages lawful business interests. Contrariwise, it is not blackmail to demand money to promote lawful business interests.

This theory has something to recommend to it. It allows us to distinguish between lawful hard-bargaining practices on the free market and unlawful cases of blackmail, and it also connects the criminalisation of blackmail to economic issues, which is something other theorists have tried to do. Nevertheless, it is still flawed.

To be slightly harsh on Atkin, his theory could be criticised on the grounds that it is circular: it says that blackmail is unlawful because it fails to promote lawful business interests, but it only does this because blackmail is unlawful; if blackmail were lawful it would promote lawful business interests. Thus, Atkin’s really begs the question.

This may, as I say, be too harsh — Lindgren certainly seems to think so — but still Atkin’s theory can be impugned on other grounds. The main one being that blackmail can, contrary to what he says, be committed when furthering “lawful” business interests. For example, a newspaper publisher could demand advertising in return for failing to publish a story that damages the advertiser’s reputation. Here, the demand furthers lawful business interests since the advertising revenue increases the profitability of the newspaper, but it still counts as blackmail.

3 - Ball and Friedman’s Theory
The third theory comes from the writings of two members of the American law school professoriate, Harry Ball and Lawrence Friedman. They tie social norms and economic goals together in their theory of blackmail. Their basic claim — glossing over some interpretive issues — is that the criminalisation of blackmail represents a social judgment to the effect that it is not permissible to turn information about a person’s past into an income-producing asset, as is done in the typical information disclosure case of blackmail.

Unlike the preceding two theories, which at least something to them, this one has nothing. Or so it seems anyway. For starters, their theory is purely descriptive, not normative. So they don’t attempt to justify the criminalisation of blackmail. Further, as a descriptive theory it is still a failure. There are plenty of lawful activities, which are socially approved, that involve the use of person’s past as an information-producing asset. Lindgren mentions three in his article: genealogy, biography and reporting. If Ball and Friedman were correct, these should be criminalised too. That they are not, suggests we need to look elsewhere for a theory of blackmail.

4 - Murphy’s Theory
A fourth theory comes from the pen of Jeffrie Murphy, an academic lawyer. His theory looks at the law, in typically economic terms, as an incentive system. His contention is that the criminalisation of blackmail provides an important disincentive against invasions of privacy. Without it, people would be encouraged to invade one another’s privacy in order to find damaging information and make money from it. This bears some similarities to Epstein’s theory, which looked at the possibility of blackmail corporations.

Linking a theory of blackmail to privacy rights looks like a promising venture. As noted in part two, the kinds of concealment at the heart of blackmail cases typically do overlap with the territory covered by the right to privacy. Nevertheless, there are two problems with Murphy’s theory. The first is that it fails to explain why threatening to disclose damaging information that has been discovered inadvertently should be criminalised. Additionally, invading privacy is occasionally deemed socially desirable, for instance when a newspaper reporter uncovers information about a politician’s private life that contradicts his public persona. So what would be wrong with incentivising it?

While I have my doubts about both of these objections, an obvious reply to the second one is that it is only worth incentivising it if the information will be made public. If the reporter can use it to blackmail the politician, the information will be kept secret, which is not in the public interest. So we could justifiably criminalise blackmail, without thereby jeopardising public interests.

Significantly, a keener appreciation of whose interests might be at stake in a blackmail case features heavily in Lindgren’s own theory of blackmail, which we will get to. Eventually. (Note: Murphy’s theory is considerably more complex than this summary lets on, and he does recognise some potentially legitimate cases of blackmail).

5 - Ginsburg’s Theory
A fifth theory is associated with the work of Douglas Ginsburg, another academic. Touching slightly on the point I just made, Ginsburg argues that blackmail represents wasted economic activity. The blackmailer goes to great lengths to discover damaging information about the victim, only then to suppress it. Which one could analogise to the case of an oil prospector who discovers a rich oilfield and then prevents any drilling. We wouldn’t wish to encourage this kind of wasteful activity, would we? Hence, the criminalisation of blackmail is justified.

Like Murphy, Ginsburg’s theory is quite complex, and goes into some detail on economic and bargaining theory. Nevertheless, two obvious problems arise. First, as with Murphy, Ginsburg’s theory fails to justify the criminalisation of opportunistic blackmail, i.e. cases involving the threatened disclosure of information that has been inadvertently acquired. Second, there are many wasteful economic activities — both actual and threatened — that are not criminalised. Interestingly, Ginsburg seems to accept this point an dcalls for the criminalisation of activities typically thought to be outside the scope of blackmail. For instance, he thinks it should be blackmail for a landowner, involved in some privacy dispute with a neighbour, to threaten to build a fence that is higher than is strictly needed to secure privacy since that would involve wasteful activity. But surely the criminalisation of such a threat is overkill?

6 - Landes and Posner’s Theory
A sixth theory is proffered by William Landes and Richard Posner, both proponents of the economic analysis of law. They argue that blackmail ought to be illegal because it is an illegitimate form of private rule enforcement. In the typical information disclosure case, the blackmailer threatens to disclose information that either they, the victim, or the society at large think inappropriate. For instance, the classic cases of homosexual blackmail were of this type: social mores deemed homosexuality unacceptable, even if it was not strictly illegal (though in many instances it was that too). In these kinds of cases, the blackmailer is, in effect, enforcing a social rule by extracting a fine from the victim for breaching it.

This is problematic for one of two reasons. Either the blackmailer is privately enforcing the criminal law, and thereby trespassing onto a domain in which the government has a justifiable monopoly on enforcement (there is a long argument for this conclusion). Or, the blackmailer is privately enforcing a rule that society does not deem sufficiently problematic to warrant full legal sanction and hence engaging, once more, in wasteful activity.

One could respond to this in a variety of ways. The quickest criticism, however, is that the theory fails to explain why blackmail is treated differently from other, acceptable, forms of private rule enforcement. For instance, employers frequently fire (or fail to hire) people they find disagreeable. This imposes penalties on the people fired or never hired, for failing to comport with some private rule of the employer. Now, admittedly, there are laws designed to prevent the more egregious forms of prejudice from affecting such decisions, but there are still innumerable permissible ways to impose this kind of penalty.

7 - Nozick’s Theory
A seventh theory is presented in some work done by Robert Nozick, the famous philosopher. Unsurprisingly, given his libertarian leanings, the theory also has an economic flavour. Nozick’s argument is that blackmail ought to be illegal because it represents an unproductive economic exchange. A productive economic exchange is one in which both parties increase their general welfare after the exchange (technically: where they achieve Pareto efficiency). But this is not the case in blackmail. In blackmail, the victim would be better off if the blackmailer didn’t exist and the exchange had never taken place.

There are two problems with this theory. The first is that, in a technical sense, blackmail involves productive economic exchanges: the blackmailer benefits because they prefer payment from the victim to the disclosure of the information, and the victim benefits because they prefer to conceal the information. But that doesn’t quite address Nozick’s counterfactual judgment that the victim would have been better off if the blackmailer hadn’t come into their lives. This is where the second criticism comes into play. There are many legitimate transactions that have the counterfactual nature that Nozick dislikes. For instance, if a tree branch falls from a tree on your property, and injures someone in a passing car, they can legitimately threaten to sue you unless you pay them compensation. In this scenario, you would be better off if the person who was injured did not exist, but that doesn’t mean their threat ought to be criminalised.

So there we have it, seven theories of blackmail with Lindgren’s criticisms. The table below summarises most of what has been said in this post.

Saturday, August 25, 2012

Image from Game of Thrones (HBO/G.RR. Martin), which depicts an
incestuous relationship between twins Jaime and Cersei

I’m usually pretty open to discussing anything, but even I feel a little uneasy talking about this particular topic. Incest is such a pervasive moral taboo that to even think about it tends to set off emotional alarm bells. Nevertheless, I think there is a serious moral issue to deal here and over the next few posts I want look at it.

The moral issue is this: Should incestuous acts and practices be the subject of criminal sanction? In other words, should those who participate in (consenting) incestuous relationships be incarcerated or otherwise punished? One might think this is a moral issue that has already been resolved to everyone’s satisfaction. Most countries have some kind of law prohibiting incest. For example, in England and Wales, s. 64 of the Sexual Offences Act 2003 makes it an offence for a person to engage in penetrative sexual acts with a certain set of blood relatives. The offence is punishable by up to 2 years in jail.

But a general (legislative) consensus in favour of criminalisation is not enough. Historically, many practices were subject to similar legislative consensuses but unjustly so. Although the analogy is somewhat unfortunate, an obvious example would be the historical consensus in favour of criminalising homosexual activities, a consensus that has now been overturned. Could the same be true of incest?

Vera Bergelson’s recent article “Vice is Nice but Incest is Best: The Problem of Moral Taboo” looks at this question. It discusses five rationales that are traditionally advanced in favour of criminalising incest and highlights their flaws. It then moves on to discuss the likely effect of decriminalising incest. In this series of posts, I want to walk through Bergelson’s arguments, step by step, offering some commentary along the way.

In this introductory post I will do two things. First, I will define what is meant by incest and decriminalisation. Second, I will look at arguments from religion and tradition that are pro-criminalisation.

1. Incest and Decriminalisation
We need to look at two preliminary issues. The first has to do with the nature of incest. No doubt when most of us think about incest — which is presumably not very often — we have a paradigmatic set of cases in mind. For me, the paradigmatic cases would involve (consensual) sexual relationships between a parent and child or between two siblings. But there are a range of non-paradigmatic cases that are also typically covered by incest laws. For instance, the aforementioned Sexual Offences Act 2003 criminalises sexual acts between uncles/aunts and nieces/nephews, half-brothers and sisters, and adoptive parents and children, as well as parent-child and sibling-sibling acts.

What’s more, many incest offences cover non-sexual acts too, such as marriage. For example, as Bergelson notes, many US states make it a criminal offence to marry a certain class of relatives (though usually not first cousins), even if the marriages are non-sexual in nature.

When it comes to the decriminalisation of incest, I suspect the truly challenging cases are the paradigmatic ones — i.e. the cases of parent-child or sibling-sibling sexual activity — but since the peripheral cases are also typically covered by incest prohibitions they need to be considered too. Thus, throughout the remainder of this series, the various pro-criminalisation arguments will be assessed with the paradigmatic and non-paradigmatic cases in mind.

This brings us to a second preliminary issue. What is meant by the terms “criminalisation” and “decriminalisation”. I would define these terms as follows:

Criminalisation: An action or set of actions is criminalised iff a person who culpably engages in those acts can be lawfully subjected to a criminal punishment.

Decriminalisation: An action or set of actions is decriminalised if a person is free to engage in those acts without opening themselves up to the possibility of being criminally punished.

This might seem like very basic stuff, but it’s important. The definition of decriminalisation that has just been offered is a narrow one. It is saying that a call for decriminalisation is simply a call for the removal of criminal sanction and nothing more. It is not, for instance, a call for the support or encouragement of the acts in question. In other words, the definition is pointing out that it is possible to think that an act ought to be decriminalised without thereby being forced to think that the act is, all things considered, good. This possibility must be kept in mind when considering the, basically pro-decriminalisation, position that is set out in Bergelson’s article.

That said, it might be open to the defender of incest laws to argue that the distinction between decriminalisation and full-blooded endorsement is flawed. It could be that once we remove the criminal sanction on incest we run into either a logical or causal slippery slope. For example, if we decriminalise incestuous marriages, is it not the case that we are thereby obliged to afford such marriages the same legal rights and protections as all marriages? And since those rights and protections are designed to encourage marriage, does it not follow that we thereby start to encourage incestuous marriages? Responding to such slippery slope concerns will be necessary if the pro-decriminalisation position is to succeed.

Anyway, enough of this. Let’s move on to consider some pro-criminalisation arguments.

2. Arguments from Religion and Universal Tradition
The first pro-criminalisation argument discussed by Bergelson is really two separate arguments: (i) the argument from religious authority; and (ii) the argument from universal tradition. As one might imagine from the titles, neither has a great prospect of success, but let’s consider them anyway.

The argument from religious authority holds that the criminalisation of incest can be justified by appeal to some religious authority. Most often, this will consist in an appeal to some authoritative religious text such as the Hebrew Bible, New Testament or Koran. This leads to the following argument:

(1) If a practice is prohibited by some religious text or authority, then it ought to be criminalised.

(2) Incest is prohibited by religious texts and authorities.

(3) Therefore, incest ought to be criminalised.

Obviously, for someone of my beliefs and inclinations, the principle articulated in premise (1) of this argument has no merit. As a non-believer I do not recognise such authorities nor think they should have an impact on the secular legal system. But even believers should be wary of this principle. For starters, if they accept the principle of church-state separation then, arguably, accepting that religious authority can determine secular laws in this manner undermines this principle. Furthermore, most believers have an inconsistent attitude to religious authorities. The Bible prohibits a great many things, for instance the eating of pork, but very few people, including those who accept that prohibition, think that the eating of pork merits criminalisation. Biblical authority alone won’t get you to criminalisation. An additional principle is needed for that.

Leaving that to one side, there are concerns about premise (2) as well. As Bergelson notes, some religious groups seem to allow forms of non-paradigmatic incest. For example, Judaism permits uncle-niece or aunt-nephew marriages in certain instances (I’m assuming this is true). Indeed, some legislatures (the example of Rhode Island is given) historically granted Jews an exemption from the prohibition against this type of incest for these reasons. In addition to this, if one takes some biblical stories at face value (e.g. Adam and Eve, Noah and the Flood), then it seems like incest must be permissible in some instances. So, once again, it’s not necessarily true that incest is prohibited by religious texts and authorities.

So much for the argument from religious authority. What about the argument from universal tradition? This argument suggests that incest ought to be criminalised because there is a universal tradition in favour of this view. In other words:

(4) If a practice has been prohibited by every society in human history, then it ought to be criminalised.

(5) Incest has been prohibited by every society in human history.

(6) Therefore, incest ought to be criminalised.

We’ve already seen that premise (2) is false, at least in cases of non-paradigmatic incest. And Robin Fox’s 1980 book on incest across human history (The Red Lamp of Incest) claimed that there had been at least 96 human societies that allowed some form of incest, including two societies that permitted the paradigmatic form. Still, it is true that the vast majority of human societies have been against it, so one could imagine a revised version of premise (1) that only claimed authority from the near-universal prohibition of incest.

But that just turns the critical spotlight on premise (1), which, even in the revised form, seems deeply inadequate. Why does human tradition have any moral weight on this matter? The vast majority of human societies have prohibited other things (e.g. homosexuality and female suffrage) that we no longer think ought to be criminalised. Indeed, laws on incest seem to be following suit, with an increasing number of countries decriminalising the practice (Bergelson mentions several in her article). There is more to be said the moral weight of human tradition, some of which was said in a previous post I wrote, but what has been said seems sufficient to dismiss this particular argument.

In sum, neither the argument from religious authority nor the argument from universal tradition succeeds. What they may help with, however, is explaining some of the historical basis to the prohibition on incest. Although, even here, there is some reason to be suspicious since evolutionary explanations are often deemed superior to religious or cultural ones on this particular topic. I won’t have time discuss such historical and evolutionary explanations, or the interactions between them, in this series, but suffice to say there is a rich (and sometimes rewarding) literature on the topic.

I’ll leave it there for now. In the next post, we’ll discuss two more arguments for the criminalisation of incest. The first being the argument from genetic defectiveness, which is probably the most popular secular pro-criminalisation argument. The second being the argument from protecting the family unit. Stay tuned.

Tuesday, August 21, 2012

This is a series about the so-called “paradox of blackmail”. The paradox arises from the fact that blackmail is criminalised, despite involving otherwise lawful acts. Take the classic information disclosure case as an example. Here, one person (the blackmailer) threatens to disclose truthful information about another person (the victim) to a third party, unless the victim pays them a sum of money. This is criminal despite the fact that the blackmailer is legally entitled to disclose the information, and legally entitled to enter a contract for silence (if they don’t initiate it). It is only when they combine the lawful threat with a conditional demand for payment that their act becomes illegal. Why is this?

In part one, I set out the nature of the paradox and distinguished between extortion, which involves unlawful threats, and blackmail, which involves lawful threats. It is the criminalisation of the latter that is theoretically interesting, not the former. I also discussed Richard Epstein’s attempted to resolve the paradox. This came from his article “Blackmail Inc.”. I suggested that in this article Epstein offered the following argument in favour of the criminalisation of blackmail:

(1) If an activity would sustain and support deceit and fraud on a massive scale, then it ought to be criminalised.

(2) Blackmail would sustain and support deceit and fraud on a massive scale.

Lindgren’s article performs a number of useful services. First, he provides what are, to my lights, convincing counterarguments to Epstein. Second, he reviews seven other attempted solutions to the blackmail. And third, he offers his own explanation for the wrongness of blackmail. In this part, I look solely at the first of those, leaving the other two til the next day.

1. Should Concealment be Criminalised?
We start, as we must, with the first premise of Epstein’s argument. One of the key perspectival shifts adopted by Epstein was the shift away from focusing on the actions of the blackmailer to focusing on the actions of the victim. He argued that the victim in an information disclosure case of blackmail is always engaged in a sort of long-term fraud: they are hiding information from a third party in order to gain some advantage (reputational or financial) from them.

And fraud of this sort is generally deemed to be wrong. To intentionally gain from another through false representation is a crime in most countries, and uncontroversially so. So if a given practice greatly assists in perpetuating and extending fraud, then arguably there are good reasons for criminalising it. In other words, there is arguably a legitimate transference of wrongness going on here: the reasons for criminalising fraudulent practices carry over onto any practice that greatly assists those practices.

That, at any rate, was the basic defence of premise (1) outlined in part one. The problem is that this basic defence is terribly sloppy. Leaving aside the problems with the notion of transference (we’ll get to those in a minute) there are deeply troubling issues with the alleged wrongness that is being transferred — i.e. the wrongness of fraud. These issues stem from the failure to distinguish between justifiable instances of concealment and unjustifiable instances of fraud.

To see the difference, Lindgren asks us to consider possibly the most common cases of blackmail in the 20th Century: the homosexual blackmail. The set-up is obvious: a man (or woman) works for some powerful company or institution. They enjoy certain privileges and benefits as a result. The man, however, is a closet homosexual and someone discovers this fact. They threaten to reveal this information to the man’s bosses which, given the social mores of the time, will lead to ruin. But they will remain silent for a fee.

If Epstein is right, the closet homosexual, by concealing information about their sexuality, is engaged in an unjustifiable form of fraud. Thus, according to Epstein we should really be asking — as he does at the end of his article — why they are not subject to criminal sanction, not why the blackmailer is. But that doesn’t seem right. It seems like the closet homosexual is perfectly within his rights to conceal the information about his sexuality from his bosses. There is a right to privacy here which modulates the wrongness of gains made by false representations. Not revealing this kind of personal information may create a false impression, and you may well be aware that this false impression is being created, but there’s nothing wrong about it.

What’s more, this is only one example of the justifiability of concealment. Others abound. For example, Lindgren points out that courts frequently conceal information from juries — for example information that might be “unfairly prejudicial” — so as to improve their decision-making. Similarly, concealment is often essential in bargaining and negotiation: if one reveals too much too soon, one is likely to be much less successful at the bargaining table. Are we to deem these instances of concealment worthy of criminalisation?

Surely the answer is no and surely this reveals a fatal flaw in Epstein’s reasoning. At the heart of most blackmail cases is the concealment of information. On some occasions, the concealment of information is perfectly justifiable. But if the concealment of information is justifiable then it follows, by transference, that being an accessory to concealment is (at least sometimes) permissible. Since that is all that blackmail is, it follows that there is nothing necessarily wrong with blackmail.

(5) The concealment of information should not always be criminalised (as is shown by the examples given above).

(6) If the concealment of information should not always be criminalised, then nor should being an accessory to, or assister of, concealment.

(7) Therefore, blackmail should not always be criminalised.

Formally, this argument is a direct counter to the one offered by Epstein. But perhaps its most important feature is that it highlights the flaw in Epstein’s premise (1). By assuming that concealment is equivalent to fraud, Epstein manages to reach his desired conclusion. But he was not entitled to that assumption.

2. Would Blackmail Assist Fraud and other Crimes?
Lindgren has another objection to Epstein’s argument. Let’s assume, contrary to the previous argument, that the victim’s actions in a case of blackmail are always tantamount to a wrongful fraud. Would it thereby follow that blackmail, because it assisted that fraud, ought to be criminalised? In other words, would the wrongness of fraud really transfer onto activities that encourage fraud in such a way that those activities could be legitimately criminalised?

To answer that question appropriately, we must be fair to Epstein’s original argument. As we saw in part one, Epstein’s claim was not simply that blackmail provides some mild inducement to fraudulent activities. Presumably, many things could do this both innocently and inadvertently. Rather, Epstein’s claim was that blackmail would do this on a massive scale. In particular, blackmail corporations, if they existed, could use the leverage they had with blackmail victims to encourage them to commit other offences. For example, they could encourage people to lie on loan applications or insurance claims in order to secure payment for themselves. Now, to be clear, the point is not that blackmail corporations would do this overtly since if they did that they could open themselves up to prosecution as accessories to crime; the point is that they could do this covertly or accidentally, but on a very large scale.

But would blackmail really provide covert encouragement, more so than other legitimate economic transactions. Lindgren argues that it would not. There is ample evidence to suggest that other legitimate transactions encourage fraud and cognate crimes on a large scale, but no one thinks they ought to be criminalised. For example, the threat of mortgage foreclosure, the inability to pay business creditors, the loss of a job, are all well known to promote criminal activity, but they are all legitimate. Indeed, Lindgren cites several cases in which these very things encouraged someone to engage in blackmail. Which is rather ironic, when you think about it.

But if these other transactions can encourage fraud and crime to the same extent as blackmail, and remain perfectly legitimate, it follows that we cannot deem blackmail worthy of criminalisation merely on the grounds that it encourages fraud and other crimes. In other words, the following argument seems to hold:

(9) If blackmail provides no more encouragement to fraud (and other crimes) than these transactions, it cannot be justifiably criminalised on the grounds that it does.

(10) Blackmail provides no more encouragement than these legitimate activities.

(11) Therefore, blackmail cannot be justifiably criminalised on the grounds that it provides covert encouragement to fraud and other criminal activities.

This looks to be another telling blow for Epstein’s argument. But maybe there is hope for it yet? Maybe it is still possible to argue that blackmail is somehow exceptional in its powers to encourage fraud. Consider once more the case of the fraudulent loan application or insurance claim. If Blackmail Inc. could spawn an epidemic of these, thereby undermining key components of the financial sector, it might really be okay to criminalise it.

Lindgren deals with this in swift fashion. He points out that there is no good reason to think that Blackmail Inc would covertly encourage financial fraud at all. Quite the contrary in fact. Blackmail Inc., like any other commercial enterprise, would have no incentive to force its customers/victims to such extremes. It wants to be a profitable enterprise. If it pushes its customers to desperate measures like fraud and deceit, it will simply be doing itself out of business. So it’s far more likely that Blackmail Inc. will negotiate manageable payment schedules with its victims. This might mean they fund part of the costs of doing business in the short term, but in the long-term it will prove successful. Many businesses follows this strategy.

3. Conclusion
To summarise, Epstein thinks that blackmail ought to be criminalised because its legalisation could have devastating consequences. Blackmail Inc could open its doors for business and encourage concealers of information everywhere to engage in massive levels of fraud and possibly other criminal activities. In this post, we have seen that Epstein’s argument is deeply flawed. This is for two reasons. First, he mistakenly assumes that at the heart of every blackmail there is a wrongful case of fraud. But this is not true: on at least some occasions, it is perfectly legitimate for people to conceal information from others, even if this allows them to make gains. Second, Epstein mistakenly assumes that if blackmail covertly encourages fraud and other crimes, it can be legitimately criminalised. But, again, this is not true: there are many legitimate transactions that covertly encourage such activities, and blackmail is not exceptional in its powers to do so.

So is there any good reason to criminalise blackmail? In the next post we’ll look more closely at Lindgren’s own opinions on this topic.

Monday, August 20, 2012

Madeline’s Memoirs: Madeline is an infamous courtesan operating in Victorian London. She counts among her clients some of the most powerful establishment men in Britain. With her career on the wane, she decides to write her memoirs, which will reveal all the sordid details of her many dalliances. This will no doubt cause great scandal and (given the social mores of the time) will be the downfall of her indecorous clientele. Spotting an opportunity to make more money, Madeline offers her former clients a deal: if they pay her a large sum of money, she will keep their name out of the published version of her memoirs.

This thought experiment — which is based on the real-life case of Harriette Wilson — is an example of blackmail: Madeline threatens to do something that would upset or destabilise her clients, unless they pay her a sum of money.

Blackmail is recognised as a crime in most countries. For example, in England and Wales, blackmail is criminalised under s. 21 of the Theft Act of 1968 and carries a potential maximum sentence of 14 years imprisonment. But the fact that blackmail is criminalised is thought to be troubling by many theorists of criminal law. As they see it, there is a paradox underlying the criminalisation of blackmail. And many of them have written at length about this paradox and its possible resolution. Indeed, the volume of literature available on this one topic is frankly overwhelming.

In this series of posts, I want to consider the so-called paradox of blackmail and its possible resolutions. As I said above, the volume of literature is overwhelming, so my discussion is limited to a few idiosyncratic pieces that happened to capture my attention. This may result in some arguments and theories not getting a fair shake in this series. I apologise for that in advance. I’m still reading and learning more about the topic as I write this, and so this series can really only be counted as a preliminary stage in my own education on this topic.

Anyway, in this first post I want to do three things. First, I want to set out the alleged paradox of blackmail in as clear a fashion as I can. Second, I want to introduce the reader to a famous (but not particularly good) article by Richard Epstein, which attempts to explain why blackmail ought to be criminalised. And third, I want to formalise the argument at the heart of Epstein’s paper so to facilitate its critical appraisal in part two.

1. The Paradox of Blackmail
It is easy to conflate blackmail with extortion — indeed the offence of blackmail as defined under English law seems to do this — but it is important to distinguish them nonetheless. When it comes to the paradox of blackmail, the theoretical debate is about blackmail itself, not about extortion. Here’s the difference:

Extortion: A extorts B whenever A threatens to engage in some unlawful act that would harm B (or a third party), unless B secures some benefit for A. For example, if I threaten to beat you up unless you pay me not do so, I am extorting you because beating you up is an unlawful act.

Blackmail: A blackmails B whenever A threatens to engage in some lawful act that would be harmful or upsetting to B, unless B secures some benefit for A. For example, if I threaten to disclose information about your affair to your spouse unless you pay me not do so, I am blackmailing you because I would be within my rights to disclose that information without the demand.

No one is troubled by the criminalisation of extortion since no one believes that people should have the right to gain money or other advantage from either threatening or engaging in unlawful acts. But people are troubled by the criminalisation of blackmail since it seems to involve lawful threats and otherwise lawful acts.

The information disclosure case is the classic example of this, and Madeline’s Memoirs is a classic example of the information disclosure case. In the scenario described, Madeline is threatening to disclose information about her clients to the public at large. She is perfectly within her rights to do so: provided she is not defaming anyone (i.e. provided she is telling the truth), she is entitled to disclose information about her affairs to the public and, indeed, to make money from that disclosure through book sales. Furthermore, she is within her rights to enter a contract for silence with her former clients, provided she does not initiate it. In other words, if her former clients came to her and asked her to remain silent in return for payment, she would be within her rights to accept that payment. It is only when she couples her lawful threat to disclose the information with a demand for money from her former clients, that her actions become criminal.

This is the essence of the so-called paradox of blackmail. Two acts — (a) threatening to do what you are lawfully entitled to do and (b) receiving money for refraining from doing what you are lawfully entitled to do — are innocent in and of themselves, but when they are combined in the form of a conditional demand (Unless you do X….I will do Y) they become criminal. Why is this?

2. Epstein’s Blackmail Inc.
One potential answer to this question can be found in Richard Epstein’s article “Blackmail Inc.”. As I said in the intro, the article is not particularly good, but it was my entry point into the literature so I have some perverse sense of loyalty to it. The majority of the article is given over to setting out Epstein’s understanding of the paradox of blackmail and only a tiny portion at the end is given to resolving the paradox. Despite this, I think the article has two interesting features and I’d like to share them here.

The first is that Epstein seems to sharpen the paradox by analogising blackmail with hard bargaining. (Now may be a good time to note that Epstein analyses everything through a libertarian lens.) Consider a supermarket chain which is negotiating with a firm of apple producers for the supply of apples to their stores. In previous years, the supermarket chain was happy with the price they negotiated with the producers, but they have recently heard of a rival firm of producers who are willing to supply at a lower price. Using this fact to their advantage, the supermarket chain threaten to switch their business to the rival firm unless the old firm can undercut the prices offered by the rival firm.

Structurally, this scenario bears a lot of similarities to blackmail. There is a threat to do something that is lawful, i.e. switch business to the rival firm. This threat is coupled with a conditional demand, i.e. unless the old firm reduces the price the threat will be carried through. And this demand harms or upsets the old firm because they are forced to reduce their profit margins. But for all that, there is nothing illegal about it. We tend to accept that hard bargaining of this sort is just part of the cut and thrust of ordinary commerce. And because of the structural similarities between this lawful practice and the unlawful practice of blackmail, the problems with the criminalisation of the latter are drawn into sharper relief.

The second interesting feature of Epstein’s article is the thought experiment he sketches at the end. In order to present his argument against the legalisation of blackmail, Epstein asks us to imagine a world in which blackmail is legalised to such an extent that a corporation is set up that specialises in blackmail. This is the Blackmail Inc of the title to his article (on this side of the world we would call it Blackmail Ltd.). Such a corporation would spend all its time hunting down salacious and upsetting information about people, carefully gaining monopoly control over that information, and demanding money for its non-disclosure.

Would such a world be a pleasant one? Would it be one we ought to welcome? Epstein thinks not, and his reasons for thinking not form the basis of his argument in favour of the continuing criminalisation of blackmail.

3. The Blackmail Inc. Argument
To make his case, Epstein asks us to reorient our perspective on blackmail. Typically, we look at it from the perspective of the potential blackmailer, i.e. the person who is demanding the money or favour in order to keep quiet. But we shouldn’t ignore the perspective of the potential victim, i.e. the person who doesn’t want the information to be disclosed. As Epstein sees it, this person is engaged in a long-term systematic deceit or fraud in order to gain some reputational or tangible benefit from a third party. And the fact that they are engaged in such a level of deceit or fraud is significant.

It is significant because the legalisation of blackmail could embolden this type of deceit and fraud. And it is this emboldening which, according to Epstein, justifies the criminalisation of blackmail. We can put this in argumentative form in the following manner:

(1) If an activity would sustain and support deceit and fraud on a massive scale, then it ought to be criminalised.

(2) Blackmail would sustain and support deceit and fraud on a massive scale.

(3) Therefore, blackmail ought to be criminalised.

Let’s talk about the premises of this argument for a bit and let’s begin with premise (1). The premise is supported by the generally accepted belief that fraud and deceit are harmful — they cause people distress and allow others to make unfair gains — and consequently are ripe targets for criminalisation. That this is generally accepted is apparent from the fact that many legal systems criminalise fraud, and its criminalisation is generally not thought to be theoretically problematic. There are other issues with this defence of premise (1), and we’ll talk about them in part two, but for now just note that it only talks about deceit and fraud “on a massive scale”, thus ruling out the criminalisation of trivial acts that might encourage minor levels of fraud or deceit. No doubt there are many such acts, flowing from social norms for instance, but we ought not to criminalise them. Only when the emboldening crosses a certain threshold will it become a target for criminalisation.

Let’s move on then to premise (2). This is defended by reference to the thought experiment involving Blackmail Inc. and to two mechanisms that Blackmail Inc. could exploit in sustaining and supporting deceit and fraud on a massive scale. The first is simply that Blackmail Inc could use its leverage to force the blackmail victim to engage in other types of fraud, or indeed other criminal acts, in order to pay them off. For example, since the victim already has their toe in the door of fraud, why not go a little further and make a fraudulent loan application, or a dodgy insurance claim, in order to pay off their blackmailers? Coupled with this, there is the possibility that Blackmail Inc could offer ongoing advice and consultation to the blackmail victim on how best to continue their fraud. Indeed, this could well be a necessary element of their business since the victim needs to be assured that the information will not slip out in any other way. So there are least two ways in which the legalisation of blackmail could support and sustain fraud on a massive scale. When we combine this fact with the principle in premise (1), we reach the desired conclusion: blackmail ought to be criminalised.

This is the basic structure and defence of Epstein’s argument. But is it any good? We’ll see in part two.

Sunday, August 19, 2012

Welcome to this, the third and final part in my series of posts on consequentialist theories of punishment. The series is working off some of the material contained in Michael Zimmerman’s book The Immorality of Punishment. The book argues for two conclusions. The first is that there are very serious moral reasons that count against the legal imposition of punishment (defined as “intentional harm that is fitting”). The second is that, all things considered, the weight of moral reasons counts against punishment.

I’m not concerned with Zimmerman’s total defence of those claims in this series. My interests are much narrower than that. I’m only concerned with how he defends those claims in relation to consequentialist theories of punishment. These are theories of punishment which seek to justify the imposition of punishment by reference to its desirable consequences, most often that of harm reduction.

There are three such theories dealt with by Zimmerman, each of which highlights a different mechanism through which punishment can achieve its harm-reductive effects. The first is the rehabilitative theory; the second is the incapacitative theory; and the third is the deterrence theory. We’ve already looked at the arguments for and against the rehabilitative theory. In today’s post we’ll look at the arguments for and against the incapacitative and deterrence theories.

Recall at the outset, as was discussed in part one, that the key to evaluating these theories is to ask a contrastive question: Is a punitive form of incapacitation/deterrence more likely to achieve the end of harm-reduction than a non-punitive form? Only if the answer is “yes” will the theories succeed in justifying punishment. This is for a simple moral reason: punishment involves the intentional harming of another human being and it is, all things considered, better not to harm than to harm.

1. The Incapacitative Theory of Punishment
According to the incapacitative theory of punishment, punitive acts, practices and institutions have a harm-reductive effect insofar as they incapacitate harm-producing people. The most common way in which this is achieved is through incarceration, which removes the harm-producing person from society. But other types of punishment can have this effect too. Most obviously, the death penalty could have an incapacitative effect.

The argument might look like this:

(1) If punitive practices are more likely to reduce harm by incapacitating harm-producing people than non-punitive practices, then there is (at least one) moral reason counting in favour of punitive practices.

(2) Punitive practices are more likely to reduce harm through incapacitation than non-punitive ones.

The principle stated in premise (1) can be accepted for the sake of argument. Premise (2) is where most of the action is. The first problem with it is non-contrastive in nature: can punishment actually achieve the end of incapacitation? Maybe some forms can (e.g. permanent incarceration), but not all (e.g. temporary incarceration, fining or lashing). Further, it seems like there would be certain people for whom the incapacitative effect would be redundant. For example, someone who was never going to commit a crime again, either due to some general disposition or due to the exceptional nature of their crime, would not need to be incapacitated. For such people, punishment could not be justified as it would not achieve the harm-reductive end that is needed to justify it. In practice, it might be very hard to identify such people, and consequently there might be a tendency to err on the side of caution and punish most criminals as a result — Zimmerman suggests this is borne out by the practice on parole boards — but such precaution would still lead to unjustifiable instances of error.

I’m somewhat unsure about this argument. It seems to me that a certain risk of error is both tolerable and justifiable. Indeed, in law it seems like achieving the correct balance of errors (false positives to false negatives) is a constant goal of the system. The trade-off would be the all-important question: are we achieving a sufficient harm-reductive effect to offset the damage done by unjustifiable imprisonment? But this might be a very difficult question to answer in the absence of any ability to identify those for whom punishment has the desired effect and those for whom it does not. Maybe that’s what Zimmerman was getting.

The second problem with premise (2) is probably more telling, though once again I’m somewhat uncertain about it. This problem is contrastive nature: what possible advantage could accrue from punitive incapacitation compared to non-punitive forms? Zimmerman thinks there is none: punishment adds nothing here. It’s difficult to evaluate this argument since Zimmerman doesn’t sketch what he thinks a non-punitive form of incapacitation would look like. To me, it seems like any form of incapacitation would be somewhat punitive since it would involve the elimination of certain choices and the undermining of autonomy. This would be true even in cases of incarceration in a very pleasant environment. And even there problems arise. If the environment is made too pleasant — e.g. if the incarcerated person can interact with a whole group of other prisoners, work in rewarding jobs and so forth — it could open up opportunities for further harmful conduct and thereby undermine the incapacitative effect. Indeed, this happens in contemporary prisons where conditions are far from non-punitive. So we have to wonder about this part of Zimmerman’s argument.

2. The Deterrence Theory of Punishment
According to the deterrence theory of punishment, punitive acts, practices and institutions can be justified in terms of their deterrent effect. In other words, they can be justified because they discourage would-be criminals from engaging in harmful conduct. This satisfies the goal of harm-reduction. The argument runs as follows:

(4) If punitive practices are more likely to deter would be criminals than non-punitive ones, then there is (at least one) moral reason counting in favour of punitive practices.

(5) Punitive practices are more likely to deter would be criminals than non-punitive ones.

Again, we can skip over premise (1) here and focus our attention on premise (2). In a non-contrastive sense, it seems to be undeniably true that punishment has a deterrent effect. Zimmerman concedes as much. There is a common sense argument for this. To take just one example, would you break the speed limit if you knew that getting caught would result in an automatic five year prison sentence? No doubt the probability of getting caught will factor into the decision too, but I have to say that, from my perspective, an automatic five-year sentence for speeding would make me far less likely to break the limit. In addition to common sense, there seem to be empirical cases backing up the deterrent effect of punishment. Zimmerman cites the case of Singapore, which imposes the death penalty for a wide range of offences, and has a very low crime rate (presumably as a result of punitive practices). Unfortunately, no proper social-scientific analysis of the data is conducted, but the claim is certainly not implausible.

So there is good reason to think that punitive practices have a deterrent effect. But are there non-punitive practices that could be equally as effective? One could argue that punishment is really not needed in order to achieve the deterrent effect. Rather, it is the threat of punishment that is needed. To return to the speeding example, my decision not to speed is guided by the threat of five year imprisonment, not by the actual fact that I have been imprisoned for five years.

The problem with this line of reasoning is that it is very difficult to see how the threat of punishment could have the deterrent effect without there being, at least some, occasional cases of actual punishment. In order to be effective, the threat needs to be credible, and if punishment is never imposed it couldn’t really be credible. One possible source of salvation is fake punishment. In other words, the threat could be made credible by giving people the illusion that they will be punished. However, this would seem to require a massive, and probably unsustainable, conspiracy in order to work. Thus, it seems more likely that an actual system of punishment would be more effective as a deterrent than a fake one.

3. Punishing the Innocent
Perhaps surprisingly then, Zimmerman finds the deterrent argument to be successful. Obviously, this is not a welcome conclusion given the overall project of his book. So what does he do to avoid it? Predictably enough, he falls back on the old problem of punishing the innocent. Ostensibly, this is a problem that works against all consequentialist theories of punishment, but since deterrence is the only remaining candidate we’ll focus on that.

I’ve discussed the problem at greater length before. In essence, it boils down to this: if punishment is to be justified in terms of its deterrent effect, then one could justifiably punish the innocent on this basis. Why? Because the goal is achieving the greatest level deterrence and punishing the innocent as well as the guilty would have a greater deterrent effect than punishing the guilty alone. But there are serious moral reasons against punishing the innocent, so if a deterrence-based justification allows for this, there must be something wrong with that justification.

In effect, this is a slippery slope argument. It claims that embracing the deterrence principle will lead, either logically or causally, to the unpalatable consequence of punishing the innocent. As follows:

(7) If we accept the deterrence principle of punishment, then we must also accept that it is okay to punish the innocent.

(8) It is not okay to punish the innocent.

(9) Therefore, we ought not to accept the deterrence principle.

There are a variety of responses open to the proponent of deterrence. The first is to bite the bullet and accept that punishing the innocent is okay. I looked at that possibility in my earlier post on this topic. The other is to argue that there is some logical or causal blockage that prevents the slide from deterrence to punishing the innocent. I’ll look at those possibilities here.

From the causal perspective, one could argue that punishing the innocent is unlikely to have a deterrent effect. Indeed, punishing the innocent may serve to reduce the deterrent effect of punishment, particularly if it is done in a heavy-handed fashion. After all, if our likelihood of being punished was the same irrespective of whether we had engaged in harmful conduct or not, we would lose the incentive to forbear from harmful conduct. Zimmerman acknowledges this point, but thinks it would only imply that governments should be careful in how they punish the innocent, not that they wouldn’t be justified in doing so.

From a logical perspective, one could argue that there’s no obvious inconsistency created by introducing a special clause in the deterrence principle that excludes punishment of the innocent. We would achieve a sufficient deterrent effect from punishing the guilty anyway, so why we would need to take the unwelcome step of punishing the innocent? For Zimmerman, the problem with this argument is that it assumes it is easy to justify punishing the guilty. But he thinks this isn’t the case and he dedicates subsequent chapters of his book to showing why. Unfortunately, those chapters lie beyond the scope of this series, so I’ll have to leave it there. Read the book if you want more.

To sum up, Zimmerman thinks that neither the incapacitative nor the deterrent theory of punishment provides a satisfactory justification for punitive practices. The incapacitative theory fails because non-punitive incapacitative practices are possible and they would be more justified than punitive ones. In my analysis above, I expressed some doubts about this by wondering whether non-punitive incapacitation could really exist. As regards the deterrence theory, this seems much more promising since there do not appear to be viable non-punitive alternatives. Nevertheless, Zimmerman thinks that even the deterrence theory has its problems because it justifies punishing the innocent. But, as we just saw, there may be some reasons for doubting that too. So, I’m a little more sanguine about the deterrence theory than Zimmerman is.

Saturday, August 18, 2012

This is the second part in a brief series of posts looking at consequentialist justifications for punishment. The series works off some of the material contained in Michael Zimmerman’s book The Immorality of Punishment. As explained in part one, Zimmerman uses this book to defend two theses about the nature of legal punishment. The first — the partial unjustifiability thesis — holds that there is at least one serious moral reason (possibly more) that counts against punitive acts, practices and institutions. The second — the overall unjustifiability thesis — holds that the weight of moral reasons is highly likely to count against punitive acts, practices and institutions.

What I want to do here is see how those theses pan out when it comes to consequentialist theories of punishment. In other words, I want to see if there are serious moral reasons that count against such justifications of punishment. As we saw the last day, consequentialist theories of punishment typically justify punishment by pointing to its harm-reducing effects. This is thought to be achievable in one of three ways: (i) through punitive rehabilitation; (ii) through punitive incapacitation; and (iii) through punitive deterrence. In order for these practices to count as “punishment”, they must involve the intentional imposition of fitting harm.

And therein lies the problem. Key to the success of any one of these three theories is its ability to answer (in the affirmative) a contrastive question: Is a punitive form of rehabilitation/incapacitation/deterrence more likely to be successful than a non-punitive form? The question is necessary since non-punitive forms of rehabilitation/incapacitation/deterrence are possible and, if more likely to be successful, will be more morally justifiable than punitive ones. This is for simple moral reasons: it’s better not to harm someone than to harm them.

In this post, we will see how the rehabilitative theory of punishment fares when it comes face-to-face with the contrastive question. The analysis will be divided into two sections. First, we will look at educative approaches to rehabilitation and see whether they can justify punishment. Second, we will look at non-educative approaches to rehabilitation.

1. Rehabilitation via Moral Education
One way in which punishment is thought to achieve the goal of harm-reduction is through the moral education of the punishee. The reasoning is as follows. By engaging in conduct that causes harm (i.e. by engaging in criminal activity of some kind) an offender has signalled a lack of moral knowledge. Only someone who was not aware of the decisive moral reasons that counted against the harmful conduct would have engaged in it. Punishment can be used to make them aware of these reasons. Hence, punishment can be used to morally educate an offender, which in turn can reduce instances of harmful conduct.

To be sure, this reasoning is far from flawless. As Zimmerman notes, it only works if two preliminary conditions are met.

The Unawareness Condition: The punishee must be genuinely unaware of the moral reasons that counted against his conduct prior to punishment. If he learned them immediately after committing the offence and was deeply repentant, punishment would not be needed.

The Receptivity and Responsiveness Condition: The punishee must be both receptive and responsive to the educative effect of punishment. In other words, they must be capable of recognising and responding to moral reasons. Arguably, this condition is not met in the case of many offenders. For example, psychopaths are thought to be peculiarly unreceptive to moral reasons.

Zimmerman argues that it will be difficult to tell whether those conditions are actually met in many cases. But let’s assume that the two conditions can be met and identified and see what follows. Presumably, the rehabilitative defender of punishment would offer something like the following argument:

(1) If punitive acts are more likely to achieve the end of moral education than alternative non-punitive acts, they can be (at least partly) justified in terms of their harm-reducing effect.

(2) Punitive acts are more likely to achieve the end of moral education than alternative non-punitive acts.

(3) Therefore, punitive acts can be (at least partly) justified in terms of their harm-reducing effect.

There are certain issues with the way in which premise (1) is formulated, but we’ll talk about those in a minute. The bigger problem, at least as Zimmerman sees it, is that premise (2) is false. Punitive acts are not more likely to achieve the end of moral education than alternative acts. At an empirical level, although some punishees may learn an important lesson from their incarceration (or other form of punishment), the high rates of recidivism suggest that this is not a general truth.

Furthermore, even in principle, it’s not clear exactly how intentionally harming people will make them learn their moral lessons. A common suggestion is that whenever the harm imposed matches the harm involved in the offence, the punishee will learn, not just in the abstract, but in their “gut” why their action was morally wrong. This has an air of plausibility about it, but problems remain. For starters, it would need to be demonstrated that this really is the case. In addition, many forms of punishment do not attempt to replicate perfectly the harm imposed by the offence, nor is it clear that it is desirable that they do so. For example, how do we replicate the harm imposed by a serial rapist? Would we wish to do so? Admittedly, there are some who think we should, but it seems like doing so would create a disturbing level of cruelty in the heart of the criminal justice system.

For these reasons, the argument from moral education seems to fail. But there is an escape for its defender. This is to argue that the version of the argument that I have presented misconstrues their claim. As I have phrased it, premise (1) is all about justifying individual punitive acts by reference to their educative effect. But this is not the argument that is being made. A proponent of educative rehabilitation could concede that individual punitive acts are unlikely to have the desired effect, and argue instead that the cumulative effect of a sustained and systematic series of such acts could have the desired effect. This would lead to the reformulation of premise (1):

(1*) If a punitive act or sequence of punitive acts is more likely to achieve the end of moral education than alternative non-punitive acts (or sequences thereof), they can be (at least partly) justified in terms of their harm-reducing effect.

The problem is that even if the premise is reformulated in this manner, it is no more likely that the ensuing argument will be successful. If an offender is repeatedly punished, it seems more likely that they will grow bitter and resentful of the system that punishes them, or, perhaps worse, more battle-hardened and less worried about being punished for engaging in harmful conduct. Indeed, this seems to be borne out by the current status of system (and the level of recidivism involved (though one would like to see some figures on this just to be sure).

2. Non-Educative Rehabilitation
The argument we looked at spoke to the role that punishment could play in the moral education of the punishee, and to the role that this could play in rehabilitating character and reducing future harmful conduct. A more cynical rehabilitative theory might argue that punishment could be effective in changing behavioural dispositions, even if it did nothing to improve moral character. For example, it might argue for a form of punishment based on aversion therapy. In aversion therapy, a subject is repeatedly presented with a stimulus that is paired with an unpleasant or noxious event. The idea is that over time they will learn to associate the stimulus with the unpleasant event, and thereby become averse to it. It is often used in cases of addiction. This type of therapy would count as punishment since the unpleasant event would be intentionally harmful.

Could a pro-punishment argument, using this kind of rehabilitative practice as its basis, be made? Well, sure it could. We’d just have to adjust the premises from the moral education argument and make them speak about behavioural alteration instead. But we’d still run into the same problem, or so at least Zimmerman argues. The notion that we could successfully rehabilitate people using something like aversion therapy is purest fantasy, as best he can tell.

But this is just a “put-up or shut-up” argument. It merely challenges defenders of rehabilitation to show that their methods can be successful. There is always the danger that they actually do put up and thereby shut you up. So, unsurprisingly, Zimmerman argues that such methods are always likely to be unsuccessful. He does on the grounds that a rehabilitative punishment, like aversion therapy, relies on the mistaken assumption that criminal behaviour is attributable to some individual pathology that can be fixed or cured. This assumption is mistaken. It is far more plausible to think that criminal behaviour is attributable to a complex set of individual, genetic and environmental causes. Thus, a therapeutic intervention that only targets individual pathologies is always likely to fail.

I think this is difficult argument to evaluate. I would certainly concede to Zimmerman that the causal basis of behaviour is a complex set of individual and environmental factors, but I’m not sure it follows that rehabilitative interventions targetting the individual are thus unlikely to be successful. It seems plausible to me that even if there is a complex set of causal conditions behind any particular criminal act, preventative interventions could be targetted at either the individual and environmental level and still be successful. For example, heart disease might be attributable to a complex set of individual factors (no exercise, high fat and salt diet) and environmental triggers (sedentary pleasures and readily available high fat, high salt food). But even so, it’s possible that interventions targetted at one level or the other might play some role in reducing heart disease. The same could be true of interventions targetting criminal behaviour.

Where Zimmerman seems to be on firmer ground is in his contrastive evaluation of rehabilitative punishment. Even if something like aversion therapy could be successful, it would still need to be shown to be more effective than non-punitive forms of rehabilitative therapy. This seems like a far more difficult claim to prove.

To sum up, rehabilitative theories of punishment are unlikely to provide sufficient justification for punitive acts, practices or institutions. This is for two main reasons. First, it seems implausible, given what we currently know about the effects of punishment, to think that it can be effective in changing moral character or behavioural dispositions in the manner required. Second, it seems implausible to think that punitive acts and practices are more likely to have the required rehabilitative effect than non-punitive ones. Indeed, this conclusion is more in keeping with typical discussions of rehabilitation, which often paint it as an alternative to punishment, not as an instance of it.

That’s it for now. We’ll look at the other consequentialist theories of punishment the next day.